Sunday, March 7, 2010

Justice and 'special treatment'

At the recent ACT Party conference, Dr Muriel Newman delivered an address in which she suggested that the Party could help to heal “the racial divide” by opposing “Māori privilege”. It included the simplistic call for “one law for all” and explicitly recalled Don Brash’s 2004 Nationhood speech. As media commentator Russell Brown has pointed out on his blog, we should not be surprised to hear extreme views from Dr Newman. But there are strands of Dr Newman’s thinking that form part of the more mainstream discussion of Māori rights and Treaty of Waitangi issues that I think it would be helpful to address.

For example, there seems to be a broad consensus in New Zealand that it is fair to provide redress for historical breaches of the Treaty of Waitangi. But this often comes with the qualification (implicit or explicit) that once historical claims are dealt with we can put all this Treaty business behind us. Any continuing recognition of distinct Māori or Treaty rights would not be “one law for all” and would be, exactly as Drs Newman and Brash have articulated, an unacceptable “Māori privilege”. It was precisely this sentiment that led the previous Government to back away from its ‘Closing the Gaps’ policy. The same sentiment was at the heart of the Prime Minister’s Waitangi Day speech. That speech was entitled ‘Beyond Grievance’ and repeatedly referred to the theme of ‘moving on’, once fair settlements for historical claims have been concluded. As I have noted previously, achieving just and durable settlements expeditiously is to everyone’s advantage. But removing the sense of grievance associated with historical wrongs does not end the Treaty relationship nor remove the ongoing obligations of the Treaty partners to each other. Yet according to the Prime Minister, only an extremist intent on division would suggest that the Treaty should play a continuing role in decision-making and the exercise of public power.

The difficulty with that approach is that it relies on a very narrow view of justice. In this context it is useful to consider the work of the feminist theorist, Nancy Fraser, who, in her 1997 book, Justice Interruptus, explored the connection and tension between the need to address different types of injustice in reparations and reconciliation processes. Fraser argues that justice requires both economic equality and cultural recognition and has considered ways in which these two objectives of justice can be integrated. Fraser distinguishes between these two justice objectives, or, as she describes them, ‘socioeconomic’ justice and ‘cultural-symbolic’ justice.

Fraser conceptualizes socioeconomic injustice, in a general sense, as “informed by a commitment to egalitarianism”. It is injustice that derives from the “political economic structure of society” and includes all forms of economic exploitation, marginalization, and dispossession. On the other hand, cultural-symbolic injustice is more closely associated with identity-based claims. Fraser identifies cultural-symbolic injustice as being rooted, not in political-economic structures, but rather in “social patterns of representation, interpretation, and communication”. This type of injustice is connected to cultural domination, disrespect, nonrecognition, misrecognition, and denial of recognition.

Fraser sees the distinction between socioeconomic injustice and cultural-symbolic injustice as vitally important because the strategies that are employed to address one type of injustice are often in conflict with strategies that address the other form of injustice. One form of injustice requires redistribution, a leveling of the playing field to achieve a kind of ‘sameness’, while the other form of injustice calls for measures that recognize difference. This is particularly important to understand in the context of Indigenous Peoples’ justice claims because Indigenous Peoples tend to have simultaneously experienced both types of injustice. For example, Māori communities have suffered socioeconomic injustice by being dispossessed of much of their lands and natural resources. They have also suffered cultural-symbolic forms of injustice by the implementation of legislation and policies that have prohibited their cultural practices and had serious and detrimental effects on their language.

In other words, dealing with historical Treaty breaches is only one part of the justice equation. If the agreements which settle historical Treaty claims are to be just and durable and contribute to genuine reconciliation then they must be coupled with measures which address the ongoing role of the Treaty in New Zealand public life. Which is why it would be unfortunate if such measures continue to be characterized as some form of ‘Māori privilege’ or ‘special treatment’. Far from healing racial division, such a characterization seems more likely to undermine the reconciliation project.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review